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CIRCULAR

Guiding the import, export, processing and liquidation of imported goods and consumption of products of foreign-invested enterprises provided for in the Government's Decree no. 108/2006/ND-CP of September 22, 2006, which details and guides the implementation of a number of articles of the Investment Law

Pursuant to the Government's Decree No. 29/2004/ND-CP of January 16, 2004, on the functions, tasks, powers and organizational structure of the Ministry of Trade;

Pursuant to the Government's Decree No. 108/2006/ND-CP of September 22, 2006, detailing and guiding the implementation of a number of articles of the Investment Law;

Pursuant to the Government's Decree No. 12/2006/ND-CP of January 23, 2006, detailing the implementation of the Commercial Law regarding international goods purchase and sale and goods purchase and sale agency, processing and transit with foreign countries;

After reaching agreement with concerned ministries, the Ministry of Trade gives guidance on procedures for import, export, processing and liquidation of imported goods and for consumption of products of foreign-invested enterprises under the Investment Law as follows:

I. GOVERNING SCOPE AND SUBJECTS OF APPLICATION

- This Circular guides procedures for export of products; import of machines, equipment, materials, supplies, spare parts, components and other goods in service of investment activities; goods processing; liquidation of imported goods and consumption of products of enterprises with 100% foreign capital, joint-venture enterprises or foreign parties to business cooperation contracts (collectively referred to as foreign-invested enterprises).

- This Circular does not govern goods purchase and sale activities and other directly related activities of foreign-invested enterprises provided for in the Commercial Law.

II. GENERAL PROVISIONS

1. Export

- Foreign-invested enterprises may directly export, or entrust the export of, their products.

- For goods exported under the Trade Ministry's permits or exported goods subject to line management, export procedures are as stipulated in Decree No. 12/2006/ND-CP of January 23, 2006.

2. Import

a/ Imported goods

- Foreign-invested enterprises may directly import, or entrust the import of, machines, equipment, materials, supplies, spare parts, components, details, detail assemblies or other goods for carrying out investment activities in accordance with investment projects' objectives specified in their investment licenses or investment certificates.

- For goods imported under the Trade Ministry's permits or imported goods subject to line management, import procedures are as stipulated in Decree No. 12/2006/ND-CP of January 23, 2006.

b/ Import conditions

- Goods used for the formation of fixed assets and goods imported in service of production activities of foreign-invested enterprises must be suitable to the operation objectives and size of investment projects.

- Imported goods used as samples for teaching purposes, for display or introduction at show-rooms or stands of foreign-invested enterprises must be suitable to training scales or sizes of show-rooms to exhibit or display products.

3. Other import and export activities

a/ Temporary import for re-export

- Foreign-invested enterprises may temporarily import for executing their investment projects in Vietnam the following goods:

+ Machines, equipment, means of transport or molds for the performance of processing contracts or in service of production activities in the form of lease or borrowing;

+ Goods for display at trade fairs, exhibitions or show-rooms, for production research or use as samples for teaching or training;

+ Products which have been exported for warranty, repair or replacement and then re-exported.

- For goods which are temporarily imported under the Trade Ministry's permits or are subject to line management, import procedures are as stipulated in Decree No. 12/2006/ND-CP of January 23, 2006.

- If selling temporarily imported goods in the Vietnamese market, foreign-invested enterprises shall abide by the provisions of Decree No. 12/2006/ND-CP of January 23, 2006, and fulfill tax obligations in accordance with law.

- The duration of temporary import for re-export shall be agreed by foreign-invested enterprises and their partners and registered at customs offices.

b/ Temporary export for re-import

- Foreign-invested enterprises may temporarily export for re-import for executing their investment projects in Vietnam the following goods:

+ Machines, equipment, means of transport, tools, molds or materials in service of their production and business activities in foreign countries, for performance of processing contracts, or for warranty, repair or replacement;

+ Goods for display at trade fairs or exhibitions.

- For goods which are temporarily exported under the Trade Ministry's permits or are subject to line management, export procedures are as stipulated in Decree No. 12/2006/ND-CP of January 23, 2006.

- If selling temporarily exported goods in foreign markets, foreign-invested enterprises shall fulfill tax obligations in accordance with law.

- The duration of temporary export for re-import shall be agreed by foreign-invested enterprises and their foreign partners and registered at customs offices.

c/ On-spot import and export

- Foreign-invested enterprises may conduct on-spot export of their goods produced in Vietnam if they meet the following conditions:

+ Foreign-invested enterprises shall sign on-spot export contracts clearly stating that the delivery of goods in Vietnam is designated by goods purchasers being foreign traders;

+ Vietnamese traders or other foreign-invested enterprises that wish to conduct on-spot import shall sign import contracts with the foreign traders that have signed contracts on purchase of goods of on-spot exporting enterprises, clearly stating that the delivery of goods in Vietnam is designated by goods sellers being foreign traders.

- Foreign-invested enterprises may conduct on-spot import of machines, equipment, tools or supplies for the formation of fixed assets or production materials if they meet the following conditions:

+ Foreign-invested enterprises shall sign on-spot import contracts with the foreign traders that have signed contracts on purchase of goods of Vietnamese traders, clearly stating that the receipt of goods in Vietnam is designated by goods sellers being foreign traders.

+ Vietnamese traders or foreign-invested enterprises shall sign on-spot export contracts clearly stating that the delivery of goods in Vietnam is designated by goods purchasers being foreign traders;

d/ Import of goods for marketing or sales promotion

When foreign-invested enterprises which have investment licenses or investment certificates wish to import goods of the same type with their products for marketing or introduction in service of their investment activities and for sales promotion for the consumption of their products, they shall register their import plans with the Ministry of Trade.

4. Liquidation of imported goods

a/ Foreign-invested enterprises may liquidate imported goods, including machines, equipment, means of transport, materials, supplies and other imported goods under their ownership, by exporting, selling in the Vietnamese market, donating or destroying them.

b/ Imported goods subject to liquidation include:

- Supplies or equipment redundant after completion of capital construction of an enterprise;

- Machines, equipment, means of transport, materials and other goods of an operative enterprise;

- Assets of an enterprise after its dissolution or termination of operation.

c/ Conditions for liquidation of imported goods:

Imported goods may be liquidated only when they satisfy one of the following conditions:

- For machines, equipment and means of transport:

+ Their depreciation duration has expired;

+ They are broken down;

+ They are liquidated for the purpose of narrowing the scale of production or changing the objectives of operation;

+ They are replaced with new ones.

- For materials and other goods:

+ They are redundant or left in stock;

+ They fail to meet quality requirements;

+ They are no longer suitable to production and business activities of an enterprise.

5. Processing

a/ Foreign-invested enterprises may undertake processing or re-processing of products according to the objectives indicated in their investment licenses or investment certificates. Specifically:

- They may undertake processing of products for foreign traders or undertake processing and re-processing of products for domestic traders.

- They may hire domestic processing or order overseas processing in one or several production steps for which their machines or equipment fail to satisfy quantitative or qualitative requirements.

b/ To be-processed goods must not be on the list of goods banned or suspended from export, banned or suspended from import. For goods imported or exported under permits, foreign-invested enterprises may sign processing contracts only after obtaining permits from the Ministry of Trade.

c/ Foreign-invested enterprises may conduct processing activities only after having completed capital construction investment for the establishment of enterprises and commenced production and business activities.

6. Goods purchase and sale between export-processing enterprises and the domestic market

a/ Goods purchase and sale between export-processing enterprises and the domestic market must comply with Article 15 of the Government's Decree No. 108/2006/ND-CP of September 22, 2006. Goods which are purchased and sold between export-processing enterprises and the domestic market must not be on the list of goods banned from import or export as stipulated in Decree No. 12/2006/ND-CP of January 23, 2006. Goods which are managed under permits or are subject to line management shall, before being purchased or sold in the domestic market, be approved in writing by the Ministry of Trade or a line management agency.

b/ Goods purchase and sale relations between export-processing enterprises and the domestic market are import and export relations. Export-processing enterprises may directly carry out import and export procedures at customs offices but are not required to carry out procedures for approval of import plans at management boards of export-processing zones, industrial parks, hi-tech parks, economic zones or trade zones.

c/ The sale of wastes or scraps collected during the course of production must comply with guidance of an environment management agency.

d/ Stationery or goods purchased from the domestic market for day-to-day activities of export-processing zones are not required to go through customs procedures but their purchase shall be registered with management boards of export-processing zones, industrial parks, hi-tech parks, economic zones or trade zones.

7. Consumption of products in the Vietnamese market

a/ Foreign-invested enterprises may directly wholesale or retail, or sell through their agents, their products in Vietnam. The consumption of their products shall be neither restricted in geographical areas nor subject to state control of goods and service sale prices. For goods and services with their prices subject to state management, the price brackets publicized by a competent state agency shall be applied. For goods which are distributed under separate regulations of the State, those regulations shall be complied with.

b/ Foreign-invested enterprises that have investment licenses or investment certificates which contain provisions allowing them to act as agents for selling products produced in Vietnam for other enterprises, may continue to act as product consumption agents. For other cases, the Ministry of Trade shall consider on a case-by-case basis.

III. DOSSIERS AND PROCEDURES

1. Dossiers and procedures for import, export, processing with foreign countries, liquidation of imported goods, or tax exemption for imported goods

a/ Foreign-invested enterprises may directly carry out at customs offices procedures for import, export, processing with foreign countries, tax exemption for imported goods, or liquidation of imported goods for which import tax has been exempted.

Foreign-invested enterprises shall decide by themselves on the liquidation of imported goods for which import tax has been paid to meet the conditions for liquidation of imported goods specified in Clause c, Section 4, Part II of this Circular.

Imported goods belonging to the exclusive import right of state commercial enterprises may be liquidated only after the Trade Ministry's written approval is obtained.

b/ Dossiers of import, export, processing with foreign countries, or import tax exemption are as provided by the customs law.

c/ A dossier of liquidation of imported goods for which import tax has been exempted, addressed to the customs office, consists of:

- For liquidation of imported supplies or equipment left redundant after completion of capital construction:

+ A written request for the liquidation (enclosed with a list of to be-liquidated goods), clearly stating the form of liquidation.

- For liquidation of machines, equipment, means of transport or other goods of an operative enterprise:

+ The enterprise's written request for the liquidation, clearly stating the form of liquidation and list of to be-liquidated machines, equipment, means of transport, supplies or other goods;

+ A depreciation declaration of machines, equipment or means of transport, or a report on the assessment of broken machines, equipment of means of transport.

- For liquidation of machines, equipment, supplies and other goods after the issuance of a decision on dissolution or operation termination of a foreign-invested enterprise:

+ The enterprise's written request for the liquidation, clearly stating the form of liquidation and list of to be-liquidated machines, equipment, means of transport, supplies or other goods;

+ A depreciation declaration of machines, equipment or means of transport, or a report on the assessment of those machines, equipment or means of transport;

+ A decision of the investment license- or investment certificate-granting agency approving the dissolution or operation termination of the enterprise;

+ An asset liquidation plan.

d/ A dossier of liquidation of imported goods belonging to the exclusive import right of a state commercial enterprise, addressed to the Trade Ministry, comprises:

+ The enterprise's written request for the liquidation, enclosed with a list of to be-liquidated goods;

+ A report stating the reasons and forms of liquidation (if goods are to be destroyed, the destruction plan must be specified; if goods are sold or donated, purchasers or donees must be indicated).

e/ A dossier of import of goods for marketing or sales promotion, addressed to the Ministry of Trade, comprises:

- A written request for the import, enclosed with a list of imported goods (appellations of goods, quantity, value);

- A report on the import of goods for marketing or sales promotion (clearly stating the grounds for determination of the quantity and value of to be-imported goods);

- A document certifying the registration of the marketing program (for import of goods for marketing);

- A copy of the investment license or investment certificate.

2. Dossier-processing time limit for the Ministry of Trade

Within 5 working days after receiving a complete dossier, the Ministry of Trade shall give a written reply stating its approval or disapproval of the enterprise's request.

IV. IMPLEMENTATION PROVISIONS

1. This Circular takes effect 15 days after its publication in "CONG BAO."

2. To annul the Trade Ministry's Circulars No. 23/1999/TT-BTM of July 26, 1999; No. 22/2000/TT-BTM of December 15, 2000; No. 26/2001/TT-BTM of December 4, 2001; and No. 01/2005/TT-BTM of January 6, 2005.